By Finn Dallaghan Mayock
Published: December 12th, 2018
“Totally clears the President! Thank you!” Donald J. Trump remarked on Friday evening, after the FBI’s Southern District of New York (SDNY) filed its sentencing memorandum for the Presidents former personal attorney Michael Cohen. The memorandum did not, however, “totally clear the President.” In fact, it did quite the opposite.
In late November, Cohen plead guilty to a litany of charges, and began a de facto cooperation agreement with the SDNY and Special Counsel’s office to provide valuable information in the investigations of other individuals. The sentencing memorandum which was filed Friday night gave us some valuable insight into just what those other investigations might look like. The memos, separately filed by both the SDNY and Special Counsels office, are designed to provide a sentencing recommendation based on the details of the cooperation provided by the defendant. Within these details, the most shocking revelation in Donald Trumps presidency thus far was disclosed.
Prosecutors from the SDNY effectively concluded that Donald Trump committed a felony. Full stop.
In describing the facts behind Cohen’s charge of illegal campaign contributions – the payments for silence to the women in Donald Trumps several extramarital affairs, prosecutors wrote that “Cohen himself has now admitted, with respect to both payments, he acted in coordination and at the direction of Individual-1”. Individual #1, who is abundantly mentioned within this sentencing memorandum, is identified earlier in the memo as Donald Trump. This is incredibly significant, as within legal writing and especially court filings, no sentence is hap hazardously misplaced. Former U.S Attorney and well-regarded prosecutor Renato Mariotti wrote: “Just to make it crystal clear, New York Federal Prosecutors concluded that the President of the United States committed a felony.” So as many of you have questioned in the last few days, “So what? What now?”
Within the past two years of analyzing the legal liability that Donald Trump faces in regards to the multiple investigations looming over his presidency, the general consensus gleaned from former Department of Justice opinions in both the Nixon and Clinton years, as well as standing DOJ policy have been that a sitting president cannot be indicted. The argument around this is that indicting a president would essentially incapacitate the Executive branch – but the President’s personal attorney and former NYC mayor Rudolph Giuliani has taken it a step further, asserting that the constitution allows broad criminal immunity for the President, including the right to refuse a subpoena. As we know from Nixon’s case, the Supreme Court ruled this was not true. In fact, no where in the constitution does it explicitly say that the president cannot be indicted, and for most intensive purposes, it does say that they should be treated as a regular citizen.
So we’ve reached a point where the Department of Justice has concluded one instance where the President has committed a felony. It’s important to recognize that this conclusion was not brought by Robert Mueller’s Special Counsel, in which the President has consistently called a “witch hunt,” but rather the SDNY, in which Trump himself appointed the head. This revelation is not going away. As former Solicitor General and current Georgetown law professor Neil Katyal wrote on Twitter – “ At this point the only thing standing between Trump & indictment is his presidential status. The moment that ends, his criminal exposure is ‘yuge’.
There can be no doubt that this latest damning development has brought the topic of impeachment into the foreground for even the most pragmatic and cautious pundits. The Special Counsel’s investigation into obstruction of justice and Russian collusion is plowing forward, and looking increasingly likely to have some bombshell implications when the final report is delivered. The SDNY now has concluded, and as many experts have asserted “with a degree of extreme confidence,” that the President has committed a felony by directing Michael Cohen to commit a felony. What happens to Trump now?
A strongly supported idea is that the new Democratic held Congress will have to move to impeach the President in the name of upholding the rule of law. This does not mean that Trump will be thrown out of office though. The Republican held Senate would have to vote to remove him, which seems unlikely given the Senates composition of unwavering Trump loyalists. A vote to impeach would be effectively symbolic, and could spell out political doom for Trump, bringing about a serious regard of illegitimacy to his administration, regardless if he is actually removed.
An indictment, albeit unlikely, is not off the table either, however. Katyal, who also wrote the Special Counsel regulations in the 90’s, remarked in the New York Times on the possibility of indicting a sitting president, that “the regulations contemplate that a special counsel could, in appropriate circumstances, depart from Justice Department policy.” The Southern District of New York, too, could act on their conclusion of felonious behavior by the President. Former Mississippi prosecutor Joyce Vance remarked “A case can be made for an exception to the policy against indicting a president when the crime involves the election.” While an indictment doesn’t mean that the President will be led out of the White House in handcuffs, it would almost certainly spell the end of the Trump era for good.
Regardless of what happens within the next two years, one thing seems almost certain. Former Solicitor General and Duke Law professor Walter Dellinger wrote “If Trump is not re-elected, at noon on January 20, 2021, Air Force One turns into a pumpkin. And with it any supposed immunity from indictment expires..” Regardless of whether the President is impeached or voted out of office, there can no longer be any doubt that he will be in very serious legal jeopardy, and almost certainly indicted once he is no longer the head the Executive branch.